SAMIKSHA BHATTACHARYA, MEMBER

The complainant has filed  the instant complaint under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.

The facts, in a nutshell, are that  with a view to develop a  land situated at Mouja Hatisala at  Rajarhat, South 24 Parganas, West Bengal  and to complete a Group  Housing Complex, namely, Royal Enclave thereon, the OP made an advertisement in the newspaper  sometimes in the  month of  August, 2015, in respect of the said project.  United Bank of India has approved the project and asked the applications through the said bank from the intending purchasers of the flats and garages of the said project namely, Royal Enclave at Hatisala, Mouja  - Rajarhat. OP started to collect the booking directly from the intending/prospective buyers and also through few designated branches of   United Bank of India. The OP has committed that the booking of the flats would be delivered by the end of December, 2018. The complainant intended to purchase a 3BHK flat measuring about 900 sq. ft.  on the 3^rd floor, south west side of the Arundhuti Block in the said project, namely, Royal Enclave, which was  to be developed  by the OP. On 31.08.2015, the complainant with an intention to purchase a 900 sq. ft.  flat at the said housing project filled up application form and paid Rs.2,16,000/- to  OP through  Cheque being No. 654901 dated 31.08.2015 drawn on Bank of India amounting to Rs.2,16,000/-. On receipt of the said application along with the cheque, the OP issued a money receipt dated 30.09.2015 to the complainant confirming booking of a flat at Tower Arundhuti 12, 3^rd floor. The said amount was cleared from the bank account of the complainant on 31.08.2015. The payment for the residual amount was intended to be done in phases of the “Flexi Payment Plan” commensurating to the progress of the construction work. The OP again offered the complainant to purchase a covered car parking space of the said project  and asked the complainant to pay  booking  amount  of Rs.35,000/- being 10% of the total consideration of Rs.35,00,000/-. Accordingly,  the complainant paid Rs.35,000/-  through Cheque No. 000001 dated 21.11.2015 drawn on Bank  of India. The OP  issued a money receipt  dated 21.11.2015.

The complainant requested the OP to execute an Agreement for Sale in respect of the said flat and covered car parking space, but the OP demanded 20% more of the total consideration before the Agreement for Sale. The OP could not start the construction even after one year of booking of the flat and as per payment term any payment  over 10 % of the total consideration was due only on  casting of raft. The complainant desired to pay the 20% of the total consideration after starting of piling work of construction.  The complainant also made a physical spot visit in the month of April, 2017 and found that no construction was started and she sent a letter dated 23.05.2017 through email to the executives of the OP but no reply was received by the complainant. Thereafter, the complainant also sent email on 27.05.2017, 31.05.2017 and on 03.06.2017.  The emails were received and acknowledged by the executive of the OP.  It was informed to the complainant that the construction was not started till then since the Company could not possess the land as declared. Since, the construction was not started till March 2019, the complainant asked for refund of booking amount and after prolonged discussion the OP  agreed to return the booking amount and requested the complainant to apply for refund as per their format.

Accordingly, the complainant filled up an application form for refund which was received by the OP on 19.04.2019. In spite of assurance to refund the money paid by the complainant, the OP still kept themselves silent. Observing the attitude of the OP towards construction the complainant made representation to the OP’s office time to time and requested the OP/Developer to refund the money that lying with OP.  The complainant knocked the OP’s door time to time to return the advance amount and  an every occasion  OP assured to return the same. Lastly, OP did not respond the  phone call of the complainant and  when the complainant personally visited the office of the OP for refund the OP avoided the complainant.  Lastly on 08.01.2020 the complainant sent an email asking for refund and then the OP denied to return the amount and commented that since there is no agreement for sale the company is not bound to return the money immediately. The OP has failed to start the construction and consequently failed to handover any flat to the complainant. The complainant has stated in her petition that the land-owner and/or developer cannot withhold the money taken from the complainant as an advance towards selling of a flat. The OP has not handed over the possession of the flat to the complainant only but also failed to deliver the flat to other intending purchasers who booked the flats. The continuous commitment and failure to hand over the flat or refund of money from the year 2015 till date clearly shows the intention of the developer to harass the complainant and to grab the money of the complainant. Lastly, on 10^th January, 2020, the complainant served notice to the OP asking them to refund the amount of Rs.2,51,000/- with 10% interest from 07.09.2015 till date of payment within 15 days from the date of receipt of said notice.  

Hence,  the application praying for refund of Rs.2,51,000/- and to pay 10% interest  from 07.09.2015 till   date of payment along with award for damages  for   suffering mental agony and  harassment which is assessed at Rs.1,00,000/- and the litigation cost.

Though the notice  was served upon OP. None  appeared before this Commission to contest this case by filing written version. The notice was duly served upon OP and thereafter, the  liberty was given to OP to file written version. Since  the OP has not filed written version, the case was proceeded ex parte against sole OP.

In course of argument, Ld. Counsel for the   complainant has  stated that  allured by an advertisement approved by  United Bank of India, the complainant made an application. The OP started to collect the booking money directly from the intending purchasers through the designated branches of the United Bank of India. Accordingly, the complainant applied for 3BHK flat and covered car parking space measuring about 900 sq. ft.  at 3^rd floor, Arundhuti Block at Rajarhat for a consideration of Rs.21,60,000/-. The complainant paid Rs.2,16,000/- on 30.09.2015 through cheque towards booking of the subject flat and thereafter the complainant  paid Rs.35,000/- on 21.11.2015 through cheque as booking money towards covered car parking space. Though the complainant has paid the amount in the year 2015 the OP has  not started  the construction till date. Hence, the Ld. Advocate   has prayed for allowing the complaint case by   directing the OP to refund Rs.2,51,000/- along with other relief as mentioned in the petition of complaint.

Upon hearing the Ld. Advocate for the complainant and on perusal of the entire materials on record, it is evident from the record that the complainant has applied for provisional allotment of a flat on 31.08.2015 in the project namely “Royal Enclave” at Hatisala, Mouja Rajarhat and accordingly, she paid Rs.2,16,000/-  as application money/earnest money  towards provisional allotment of the said flat developed by Dharitri Infraventure   Pvt. Ltd./OP.   From the form of provisional allotment of the flat it is stated in Clause No. 2.2 that “The detailed terms of the transfer of the said premises shall be based on the definitive legal document for the transfer of property (hereinafter referred to as “Indenture of Conveyance”) and shall include the entire understanding between the parties relating to the conveyance of the Said Premises to the Applicant/Allottee.  The Applicant/Allottee shall have no right, title or interest whatsoever on the said premises either during the construction or after its completion till the execution of indenture of conveyance by the Royal Infra Developer/Dharitri Infraventure Pvt. Ltd. in favour of the Applicant/Allottee”. Accordingly, complainant paid Rs.2,16,000/- on 31.09.2015 through cheque towards booking of the flat and she also paid Rs.35,000/- on 21.11.2015 towards booking of the covered car parking space and the OP issued  money receipts  to that effect with their seal and signature. From the  documents, it is clear that Rs.35,000/- was cleared in favour of  Dharitri  Infraventure Pvt. Ltd on 27.11.2015 and Rs.2,16,000/- was  credited in favour of  Dharitri  Infraventure  Pvt. Ltd. on 07.09.2015. On 08.01.2016 the OP issued a letter to the complainant with request to pay pending amount of 20% of the total BSP and help them for auxiliary process. The complainant has annexed the copies of series of emails annexed with the  petition of complaint as “Exhibit-D” wherefrom it appears that the amount was paid in the year 2015 and the  OP has given assurance that flat would be handed over to the complainant by the end of 2018. On spot inspection, the complainant came to know that construction of no flat except a model flat has so far been initiated. Then the complainant wanted to  know the  fate of her hard earned money with  special mention  of deadline of handing over flat  or in case inordinate delay the way out to get refund by her Email dated 23.05.2017. After series of email correspondences dated 3^rd June, 2017, the OP replied to the complainant, requesting to provide her contact number such that their conduct concerned person would call her and resolve the matter accordingly.

Ultimately, on 19.04.2019, the complainant applied for refund of money. In the application for refund, it is noted that deposit would be refunded by bank transfer which would take maximum period of six months. In the form it is written that 5% of the deposited amount would be retained to recover administrative cost. The application was deposited by the complainant on 19.04.2019.  Six months have already been elapsed but the OP did not refund the single farthing. Therefore, finding no other alternative, the complainant has filed the instant complaint on 28.02.2020, after elapsing 10 months from the date of depositing the application form, with refund request.

Now the question is whether the complainant is entitled to get refund after deduction of 5% as administrative cost or not. In the instant case, the OP has promised to deliver the flat in question and the covered car parking space by the end of 2018. But when the complainant wanted to know the whereabouts of the construction on 23^rd May, 2017, the OP has not informed anything about the ongoing project in which project the complainant has booked a flat. When the complainant applied for refund on 19.04.2019, the OP has not informed anything whether the flat was almost complete or not or whether project has been started at all.  The complainant has not intended to cancel the booking on her own will. The complainant was compelled to cancel her booking since no construction was stated after elapsing almost two years from the date of receiving the application money.  So it is clear that the construction has not yet been started till date. The OP has not given any information to the complainant about the whereabouts of the project or why the OP could not be able to construct the flat in time.  Moreover, when the complainant has wanted to enter into an agreement for sale with the OP, the OP remained silent. It was the bounden duty of the OP to take initiative to enter into an Agreement for Sale with the complainant for purchasing the flat and covered car parking space in question by the complainant after receiving the booking amount for the same. The OP is not only silent about the project but they also did not offer any refund admitting inability. No reason has been given by the OP that what prevented them to start the construction work. No Force Majeure Clause has been mentioned by the OP.  Moreover, as per terms of refund, the OP has not refunded the amount even after deducting 5% as administrative charge. Since the OP has not kept their promise as per their commitment no question of deduction of administration charge attracts in the case in hand. If the OP returned the amount in time after failure in completing the project in question, the complainant would not have taken the legal recourse by filing the instant petition before this Commission.  Moreover, no Force Majeure clause has come forward to prove that OP has not started the construction work due to unavoidable circumstances.  Rather the complainant has deposited the amount in the year 2015 and till then the OP is enjoying the same and remain silent.  All these acts are nothing but deficiency in service and unfair trade practice on the part of the OP and as such, the co complainant is entitled to get relief.

In this connection, we can rely upon the judgment  passed by the Hon’ble National  Commission reported in 2016 CPJ 328 NC where  Hon’ble National Commission  held that “As far as the alottees in tower E and F are concerned,  they have already sought  refund as an alternative  relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver the possession of the flat booked by them. In this regard, this is to be kept in mind  that a person booked a residential  flat for the purpose  of  having  a roof over his head, and  in the  hope that of completion of the construction within the time  promised by the builder, he will be able to live in a house of his own.  Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”. In another judgment, the Hon’ble National Commission held that “Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of   possession. The complainants cannot be compelled to any more for the builder to deliver and they are entitled to seek refund of money paid by them along with the appropriate compensation”. [Reported in 2016 (3) CPR 279 (NC)].

In the instant case, we have no hesitation that the complainant has paid Rs. 2,16,000/- towards booking of the flat in question and Rs.35,000/- towards car parking space in question aggregating Rs.2,51,000/-.  The complainant has annexed the bank statement to that effect. In the instant case, also the OPs are bound to refund the deposited amount by the complainant along with interest in the form of compensation causing mental harassment and agony suffered by complainant and they have to file a complaint petition before this Commission praying for relief.

 Accordingly, the complaint succeeds.

Hence,

It is

O R D E R E D

The complaint case being No. CC/189/2020 be and the same is allowed ex parte against the OP with cost.

The OP is directed to refund Rs.2,51,000/- (Rupees two lakhs fifty one thousand) only to the complainant within 60 (sixty) days hereof along with compensation in the form of interest @ 10% p.a. from the date of each payment till its full realization. 

The OP is also directed to pay Rs.15,000/- (Rupees fifteen thousand) only to the complainant within the aforesaid stipulated period. 

The complaint case being No. CC/189/2020 is thus disposed of with the above observations and directions.